International organizations or institutions, History of

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Dictionary / Encyclopedia Article

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International organizations or institutions, History of

KOLB, Robert

KOLB, Robert. International organizations or institutions, History of. In: The Max-Planck encyclopedia of public international law. 2nd ed., fully revised and updated . Oxford : Oxford University Press, 2012. p. 1-10

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http://archive-ouverte.unige.ch/unige:45018

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INTERNATIONAL ORGANIZATIONS OR INSTITUTIONS, HISTORY OF

International Organizations or l,nstitutions, History of

RoBERT KoLB This article was fast updated ]anuary 2011

A. Definition and General Issues 1

B. Forerunners in re: Federations and Conferences 8 C. Forerunners in spe: Projects for

International Organizations 11

D. First Organizations in the !9th Century 14 E. The Cemury oflntemational Organizations

(20th Century) 19

F. Conclusions 22

A. Definition and Genetallssues Sir Gerald G Fitzmaurice, as Rapporteur of the ->

International Law Commission (ILC), in 1956, defined an international organization ('IO') as 'a collectiviry of States established by treary, with a constitution ànd common organs, having a personaliry distinct from that ofits member-States, and being a subject ofinter- nationallaw with treary-making capacity' (Report on the Law ofTreaties' [1956] vol II UNYBILC 108).

These four constitutive elements of an IO are today generally accepted: (i) the forma! basis of the organization is a treary; (ii) its members are States (and pos- sibly also other subjecrs, like other IOs); (iii) it has its own organs and hence an institutional structure distinct from that of its Member States; (iv) it possesses a degree of international legal personaliry. The last element has been accepted only progressively. For years it was not considered that the legal capacity of such an international body was inherently implicit in its con~

cept. Among these four elements, the two key ones are that the organization groups together States (intergov- ernmental organization) and that it hasan institutional structure of its own. Ail law and !ife of such international bodies is then permeated by the eternal tension between these two poles, its Member States trying to maintain as much control as possible over the organ- ism they created, and the organization itself trying to emancipate itself to sorne extent from this control in order to perform as rationally and effectively as possible the common aims for which it has been crafted.

Functionally an IO is based on an institutionalized and freely chosen form of cooperation among States for certain ai ms: it is 'toute association [entre Etats] créée

pour remplir dans la société internationale une fonc- tion spécifique' (Dehousse 31). An IO is thus a form of international government, but in which the States retain most of their-> sovereignty.

2 In modern international law, an IO can therefore quite neatly be distinguished from four other related phenomena. It is not a simple conference of States, since the conference is not institutionalized: it meets and dissolves without any permanent organs bridging the times in which it is not convened (see also -> Con- ferences and Congresses, International). It is not an inter- national organ, like the -> International Court

of

justice (ICJ), since it is composed of a membership of States, represented in a plenary organ (assembly). It is not an alliance of States based on a treary, since such an alliance rests exclusively on a set of normative duties and on direct consultation between the parties toit(-> Alli- ances). It remains deprived of an international institu- tional structure. Final! y, it is not a federation of States, or, better, it is a specifie form of a federation of States.

The distinction is here more difficult.to draw.·The main point is that a federation is itself a State-body, with an autonomous constitution and with the' pretence of regulating matters oflegislation and execution oflaws on a wide array of matters in coordination with the States grouped together. An IO, as understood today;

remains studiously aloof from any suggestion ofState- hood (it is not a 'super-State') and does not interact as directlywith questions of domestic legislation; On the other hand, any IO is indeed a sort o( confederation of States, in which each one of the members retains its sovereignty; but subordinates it to sorne extent to the performance of sorne common aims (-> Confederatiom of States). Th us, for centuries, the phenomenon ofiOs was not distinguished from that of (con)federations of States. ·The difference of fun etions exp lains why the term confederation has finally been dropped for modern I Os. By using the quite recent term of'I 0', stress is laid on the international functions of such bodies, per- forming tasks geaied towards the cooperation among States and at the commonweal of the -> international community; conversely, old-fashioned confederations of States pursue mainly State-related functions, mainly securiry and defence. Through this functional aspect, the ideal element of organizing the international community and of providing means of cooperation among States is thus to sorne extent inseparable from the very concept ofiO.

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3 These distinctions have here been canvassed in sorne detail since hisrorically, ie for centuries, I Os do not dis- tinguish thernselves clearly from the rnentioned and related phenornena. The forerunners of modern IOs must indeed have been sought in conferences, international oigans, and forrns ofState federations. The main difference between these foreshadowing enrities and modern I Os lies in the lack ofinstitutionaiization of the older bodies (Ago 11). It took rnillennia before public collectivities of people were accepted as strengthening international cooperation to the extent of creating auronornous international institutions, with their own powers and the capacity to crystallize their own institutionai will.

4 The terrn 'international organization' ernerged only late in the 19th century andwas first used in a rnuch larger sense than roday. It connoted the ideal quest for a more rational organization of the world in sorne forrn of federation, able to terrninate international anarchy, to sanction international law; and to ensure international peace and ju~tice. Schernes for organizing the world politicaily were hence causai at the dawn of coining the terrn '10', The word was prob- ably first used by

J

Lorirner ( 1he Institutes of the Law ofNationsvol2 [Blackwell Edinburgh 1884] 186 and 216 et seq; he seerns to have used the word aiready in a publication of 1871, see H Wehberg 'Die Diskredi- tierung der Idee der internationaien Organisation' [1948] 48 FW 105-10 at 106). Lorirner, influenced by the concept oflaw of the school of Pufendorf, Tho- rnasius, and Burlarnaqui; considered that lawwithout sanction cannot be positive, but is bound to rernain naturai (or moral); hence, international law, deprived of institutionai sanction by a higher authority, was not positive law; and hence international anarchy prevailed. In order to rnodifY this sad state of affairs, international law had to becorne positive law. ln order to take that great leap and to becorne such positive law, it had to be guaranteed and sanctioned by sorne authority above the single States, ie by sorne federal organization in the world, which rneant an international grganization. This idea of 'organization' of the world is to be found in many au thors of the tirne, even when they did not explicit!y use the terrn IO: such is, eg, the case ofF de Martens (Traité de droit interna- tionalvol1 [Marescq Paris 1883]269 et seq and 287 et seq). He discussed the existing international unions and foreshadowed future evolutions for 'organizing

the wqrld' under the ti des 'Développement de l'idée de la communauté internationale' and 'Organisation de la communaùié internationale'. In the wake of the Hague Conferences, and under the great impression which these gatherings made on progressive international lawyers, the terrn IO was used again: Walther Schücking's article 'Lorganisation internationale' ([1908] 15 RGDIP 5-23) is a translation from the German title 'Die Organisation der Welt'. The break- through of the terrn IO in the conternporary sense carne with the ènd ofWorld War I and the creation of the ..., League of Nations and its related agen ci es (Potter [1945]). The concept now ceased to connote sim ply the generai aspiration rowards an organization of the world in order to end international anarchy.

It consolidated itself with the institutionai structures newly created, main! y the pivotai figure of the League of Nations. However, even in 1938 a leading author on the subJect matter cotild treat the question of IO under the perspective of international conferences, the rnove:rnent for international law and arbitration, and 'international federation' (Porter [1938]). He thùs evidenced a large and old-fashioned approach to the subject. With the advent of the..., Unitèd Nations (UN) system, the modern concept ofinstitutionai IOs definitive! y Tmposed itself, and the older and !arget sense was erased from public perception.

5 Sorne sociological or rnàteriai conditions must be fulfilled before IOs can flourish: (i) a plurality of States relatively independent one from the other (rather than a hegernony or empire); and (ii) a minimum ofhorno- geneity of these States, rnanifested rnainly in. subjec- tive aspects such as awareness of problerns arising out of theii: coexistence, a sense of cornmori interest, and a will to cooperate. These conditions have not been met in ail periods of hurnan history. In primitive or ancient societies, there has. been progressively roorn for forrns of federations of States. These associations of States were due to concerns of cornrnon security or to perspectives of cornrnon ):Var and booty enterprises (see eg Greek Leagues or the Triple Alliance of J 433 in pre-Colornbian Mexico). Interdependence and the sense of cornrnonness had not developed to the point that international relations could be pushed as far as.

the institutionaiization of international cooperation.

During the Roman Empire, an international organization was rendered impossible in the Mediterranean world by the predominance and hegemonie thought

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INTERNATIONAL ORGANIZATIONS OR INSTITUTIONS, HISTORY OF 3 of Rome. In the European Middle Ages, sorne federa-

tions of States did exist, but the fragmented mosaic of small and smallest autonomous collectivities on the one hand and the existence of universal powers (the Emperor and the Pope) on the other precluded any possibiliry, or indeed pressing need, to set up IOs. Fol- lowing the Renaissance, the splitting up of common faith through reform and religious wars, and the emer- gence of the jealously sovereign modern State, once again hampered any effective progress towards international organization. In the Westphalian setting of the time, Europe was politically organized under the unstable sway of the principle of 'equilibrium of powers'. When this systern proved to be increasingly unsat- isfactory, the way for IO had been slowly prepared.

Full-fledged I Os in the modern sense are th us a very recent phenomenon. The first international structures realizing or approximating IOs are to be found in the 19th century; but it is the 20th which has been truly the century ofiOs.

6 From a bird's eye perspective, it can be said that the historical evolution ofiOs from the forerunners to the realizations of the 20th cenrury has undergone three phases: (i) thar of international ( con)federations of States and of international conferences; (ii) the emer- gence of technical international unions and. commissions in the 19th century under the pressure of natural (ie technical, non-political) solidarity and interdependence; (iii) the creation of universal political international organizations such as the League of Nations system and later the UN system, under the pressure of political catastrophes such as World War I, prompting the need for radical renewal and action. The aim of providing platforrns for international contacts and sorne forrn of channeled international cooperation is corn- mon to ali these schemes.

7 Parallel to these facrual developments, there has been a continuous flow of projects or drafts presented by lawyers, philosophers, political scientists, or other interested persons, airned at a better organization of the world polity. These plans and projects have at the end of the day displayed little impact on the creation of the modern international institutions. As blueprints for a more rationally organized world, they can not, however, be altogether ignored. It would also be wrong to say thar they played no role at ali in the creation of the great modern international institutions, especially in the League ofNations and the UN.

B. Forerunners in re: Federations and Conferences 8 In ali parts of the world, on ali continents, and at ali times, there have existed groups of States linked together in a· doser or looser knit form of an international 'federation'. These structures to sorne exten!

approxima red modern I Os, even if at best as foreru~

ners. Those of the European world are more or Jess known. First, there were the Greek Amphictyonies, such as the Delan Amphictyony or the Lacedemonian Amphicryony. These were associations of Greek city- states. Their aim had initial! y been to delibera te together on religious matters of common concern. However, these associations th en quickly offered wei come forums for the discussion of common political concerns and for the settlement of disputes. Each Amphictyony was composed of an assembly to which the States sent their delegates. These aSsociations were based on equality or on relative inequality (-> hegemony of the leading power, as eg Sparra). Sorne of them possessed federal armies. Second; there have been political federations among Greek States in order to pool together forces against a common enemy (such as Macedonia or Per- sia). One may here mention the Achaean Federation or the Aetolian League. The central power was in the hands of a federal assembly composed of delegates of the States. The power thus displayed was at once legislative, executive, and judiciary. The assembly was provided with its own federal agents and secretariat;

there was also the Stratège, ie the president of the federation. Third, one may recall the Etruscan federations of towns. They faded away with the strengthening of Rome. These entities (so-called Lucomies) were again inter-city federations created under the pressing need to pool rogether forces for the defence against common outside enemies. They had at their apex a king and la ter a federal secretary general (Lars). He was an elected international agent, whose dury was to head and to administer the federation, as well as to command the federal army in times of war. One may also recall the Latin League, which grouped together 30 city-states in the Latium. Ir definitively disappeared in 334 BCE.

Fourrh, there have been shorr-lived federations among Italian city-states in the Middle Ages. Their aim was again to pool together forces for the defence of corn- mon interests (eg the League of Lodi, 1454, or the League of Venice, 1495). The changing patterns of interests of the participants in a quickly shifi:ing world did not permit rhese entities to survive for longer than

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short periods of time. Fifth, there were such entities as the -> Holy Roman Empire of the German Nation (Heiliges Romisches Reich Deutscher Nation). For sorne centuries it grouped together a series of kingdoms, cities, and other autonomous collectivities. Sixth, there was the German Hanse (since 1120, with its apogee at the 14th century). This was initially a federation of cities in order to further commercial interests, a sort of Handelsstaat (Commercial State). As is inevitable, this commercial federation also performed political functions. lt was composed of a federal assembly with the délegates of each city. The federal capital was seated in the most important city of the Hanse, Lübeck. The mayor of this town presided over the federation. The Hanse possessed its own army and navy. Moreover, in order to allow the proper developmem of commerce, the cities had sworn in the federal covenant to uphold order and securitywithin their own jurisdiction.

9 Outside of the European world, one may mention the great Triple Alliance (which was indeed a confederation) of 1433-1521 in pre-Colombian Mexico.

The Aztecs (Mexica), the Alcohua ofTezcoco, and the Tepaneks ofTlacopan, three differenùy powerfullocal collectivities, entered into a confederation with the aim of defending themselves in a common front and to engage in the common enterprise ofwars ofbooty and tributary conquest (on the structure of this federation, see MC Meyer and WL Sherman The Course ofMexican History [4th edn OUP Oxford 1991]59 et seq and espe- cially P Carrasco Estructura politico-territorial del Impe- rio tenocha: La triple Alianza de Tenochtitlan, Tetzcoco y Tlacopan [Colegio de México Mexico 1996]). This Triple Alliance dominated the Mexican highlands up to the moment of European conquest. Sorne Iroquois nations in the northern part of the American conti- nent between 1450 and 1777 also constiruted a confederation of tribes, with the aim of maintaining peace among themselves (in which it was apparenùy remarkably successful) and to solve disputes by multilateral negotiation.The confederation was mainly composed of a great council, representative of al! its members.

Third collectivities interested in the subject-matter of particular items of debates were invited to assist on a consultative basis. Treaties among the members were negotiated here. The League created a sort of civil state of affairs within its bounds, whereas the state of nature of endemie warfare still persisted outside its realm. In its ideological footprint, it remarkably foreshadows the

Geneva League of Nations of 1919 (on this Iroquois federation, see NC Crawford 'The Long PeaceAmong Iroquois Nations' in K Raaflaub [ed] Wtzr and Peace in the Ancient World [Blackwell Oxford 2007] 348-68).

10 By the same token, in past times, multilateral international conferences grouping together ail-important powers of a region in order to coordinate public poli- des and to seek political or technical cooperation can also be observed in ali parts of the world. Hence, for example, political conferences bringing together the main Chinese States in the period before the Empire was finally unified (221 BCE) were at once frequent and dealt with the most varying and important questions of common concern. The meetings consisted of discussion of co mm on concerns, in an attempt at solu- tion of disputes and in the crafting of forms of federation among States. The most famous of these great gatherings was the Conference of 546 BCE. Its object was to try to bring about-> disarmamentand the estab- lishment of a federation among the Chinese States in order to maintain the peace. The great distrust among the Chinese States of this period explains its almost complete failure. Parallels with the -> Hague Peace Conferences (1899 and 1907) and with the League of . Nations may, however, be noticed (see T Wang 'Inter- national Law in China: Historical and Contemporary Perspectives' [1990]221 RdC 195-369 at2ll-12). In Europe, one may recall the meetings of the -> Concert of Europe in the 19th century, where the Great Powers exercised a sort of de facto government in Europe in order to solve disputes, adjust their respective daims and interests, and maintain the peace. At the end of the century, with the emry into the international community of a series of non-European States, and with the strengthening of the United States, international conferences became truly multilateral. They were thenceforward based on equality and ofren vested with a law-malring function. The Hague Conferences of 1899 and 1907, grouping al! States of the world of its time, are emblemati~ of this evolution. These conferences-and the Concert of Europe-have been important landmarks on the path towards lOs. The practice of sitting together in a quasi-institutional (if not quasi-parliamemary) setting and of taking corn- mon decisions could here be slowly learm and progressively internalized. It may be added that sorne progressive lawyers like W Schücking had considered the Hague Conference as the first step of a new world

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INTERNATIONAL ORGANIZAT!ONS OR INSTITUTIONS, HISTORY OF

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federation of States

C:W

Schücking Der Staatenverband der Haager Konferenzen [Duncker&Humblot Munich 1912]).

C. Forerunners in spe: Projects for Intemationai.Organizations

11 Sin ce most ancient times and in ali continents there have been thinkers who elevated their thought to the question of a proper organization of the world, in order ro secure peace and justice. Many of these projects saw light in Europe and la ter in America; but such projects or thoughts have indeed been expressed in ali somewhat advanced cultures. For the extra-European world, it may just be sufficient to mention on the one hand Confuciu~ for ancient China and his postulates of uni- versai peace based on righteousness and conciliation;

and on the other hand Al-Kawakibi for the Arab world (see B Boutros-Ghali 'Un, précurseur de l'Organisation internationale: Al Kawakibi' [1960) 16 Revue Égyp- tienne de Droit International 15-22). In Europe and later in America, plans or Jess matured ideas for uni- versai peace and organization of the world have been expressed since the Middle Ages up ro modern times.

In antiquiry such plans were not formulated since the political ideals of the times were centred upon the constitution of empires. It is only since the Middle Ages that Europe was befàllen by a multipliciry of 'sovereigns' so thar the necessiry of rationallyorganizing them could arise. Such projects or ideas were formulated by persans, among others, as different as: P bubois, King George ofPodiebrad, Erasmus, Pope Leo X, François de la Noue, E Crucé, H Grotius, Sully, W Penn, J Beliers, Abbé de Sr-Pierre, Cardinal Alberoni, JM von Loens, JF von Palthen, JF de la Harpe, JH von Lilienfeld, KG Günther, J Bentham, JG Schindler, P de Sr-Germain, JA Schlettwein, I Kant,

JJ

Rousseau, Condorcet, JB Cloots, PA Gargaz; JS Veridicus, EF Gregorii, Delisle de Sales, KC Krause, ATaparelli, Saint-Simon, Proud- hon, JF Sineriz, JB Sartorius, P Bazan, C Pecqueur, PR Marchand, JA Bolles, Hamilton (pseudonym), TC Upham, W Ladd, LA Bara, F Bouvet, M Adler, A Malardier, D Urquhart, AP Sprague, P Lacombe, A Turconi, JC Blumschli, L Levi, JBA Godin, G Pays,

J

Lorimer, P Flore, etc (see generally Ter Meulen). Cer- tain of these projects concerned exclusively the federation of Europe (eg Dubois, Sully, Kra use, Saint-Simon, Proudhon, etc), while other projects were universal (eg Crucé, Kant). The most important and inf!uential of

these projects were those of Dubois, Podiebrad (King ofBohemia, project inspired by Marini), Crucé, Sully, Penn, Abbé de Sr-Pierre, Bentham, and above ali Kant (see Ledermann [1945)).

12 Albeit ali rhese most influ~_ntial projects differ in motivation and structure, most of them share sorne common fundamental features. Almost ali of them are based, first of ali, on a condemnation of war, be it on moral grounds or on policy considerations; ali are con- vinced of the idea that to ensure international peace and justice it isnecessaryro 'organize' theworld, sincein the 'state of nature' in which nations are caught up, peace and justice will not be finally secured; ail are based on the idea of sorne federation of States in which an assembly ( often containing legislative, executive, and judicial powers) and sorne international executive organs (egan army) impose sorne rules, provide for military securiry, and arbitra re disputes, as the case may be; sorne of these projects furrher underline thar the federation could not be maintained if the municipal societies of States Parties are not governed on the basis of sorne common princi- ples and legal rules (eg peace on the ourside depends on the rype of government on the inside: see especialiy Immanuel Kant, with his admonition for 'republican' government). The gist of these projects is th us thar only

-> civil society can ensure peace and justice for human-

iry. Hence the world must be politically organized in a federation based on common legal and political com- mitments in order ro terminate the 'state of nature' in which nations have previously founé! themselves, with the inevitable scourges of disorder, injustice, and war.

The idea of a world federation for law and peace has rhus taken the place of the ancient idea of empire or world monarchy, to the same extent that pluraliry had taken the place of uniry in international sociery. Ulti- mately, these proposais postulated a substitute to the 'world State' and were predicated upon the idea that to end anarchy in international relations the same must be done which ended anarchy in municipal relations:

establishing a higher public authoriry.

13 Such projects of an international organization of the world have rhus been at once manifold and deprived.of significant influence on the unfolding of poli ti cal events. When I Os were first realized, in the 19th century, this achievement was due first of ali to material contingencies and not on the flow of ideas of sorne morally advanced spirits. Ir would, however, be unjust to exclude any influence whatsoever of these

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ideas. Quite to the contrary, they certainly contrib- uted-even if modestly-to finally pave the way for the universal political organization of the League of Nations, if only by quietly accustoming a certain public toits possibiliry and desirabiliry.

D. First Organizations in the 19th Century 14 In the 19th century the first I Os were evenrually created on the universal and on the regional leve!. Most of these organizations were of a non-political nature, ie performed technical functions. The 19th century presented indeed for the first time an almost ideal environment and underlying conditions for the creation of international unions and organizations. There was a world divided into many States, but at the same time permeated with rapidly growing interdependencies, necessitating sorne common action. There was also the perception or awareness of that interdependence and solidariry, and of the necessity of cooperat- ing. These interdependencies of material or factual nature stemmed from modern industrialization and rechnological advance. These social evolutions were linked with a great increase in population figures; with the massive development of means of transportation;

and with a rapidly increasing need for raw materials.

These developments led to a great expansion of commerce, producing in turn a new degree of economie and financial interdependence. Thence the need to make uniform weights and measures, and communication channels, to fight spreading diseases more rapidly, etc. These pressing needs of coordination and common policies built up a widespread awareness of the insuf- ficiency of the old-fashioned conferences, devoid of instirutional structures, whieh could not administer the common concerns with the day-to-day continuity indispensable for securing efficiency. These technical solidarities hence quiekly spawned the creation of technical international organizations of two types: fluvial commissions and administrative unions.

15 First, there were fluvial commissions. The most important ones, in Europe, were those regarding the --> Rhine River (Rhine Commission, 1815) and the -->

Danube River (European Commission for the Danube 1856). There existed also organizations for the -->Elbe River (1821), the Douro (1835), the Po (1849), and the Pruth (1866). In Africa, a treaty regime existed providing for the Commission of the--> Congo River (1885),

but it has never been implemented. In the Americas, sin ce 1909 a River Commission for the --> St Lawrence Seawayand Great Lakes basin was established (-->Great Lakes, North America). The rivers and watercourses- especially those crossing many countries-were essen- rial means of commercial transportation in a century where the railway was still un der construction and avia- tion did not exist (--. lnternationalWatercourses).

16 Second, many --> international administrative uniomwere created in order to standardize weights and measures, and to administer common means of transportation or of communication, pr ir:ideed goodswhere there existed éommon concems. Th us, for example, the International Telegraphie Union (1865), the--> Uni- versa! Postal Union (UPU) (1874), the International Copyright Union (1886), the International Unior:i of Railway Freight Transportation (1890), the Interna- tional Sugar Union (1902), etc were established. As can be seen, technical matters were here the object of regulation. Public and private interests were closely interwoven or intermingled. There were also regional administrative unions. Thus, in Latin America, at the Conference of American States of 1889-90, the International Union of American Republics was created, with its 'Commercial Bureau' as secretariat. This Organization in due course became known as the Pane American Union. It regularly convoked Pan-American conferences in which the States Members could meet, discuss common concerr:is, adopt resolutions, and con- elude conventions. Initially, the Union was meant to gather and disseminare commercial information; later it became a forum for cooperation for all 'non-political' concerns (communications, fight against diseases and other social scourges, cultural matters, etc); finally, especially since 1933, it was opened ro political concerns, namely--> collective security matters. Pan-Americanism thus led directly to the ... Organization of American States (OAS) under the Charter of the Organization of American States ([signed 30 April 1948, entered into force 13 December 1951]119 UNTS 3).

17 These river commissions and administrative unions had quite differing instirutional structures, which cannot be examined in detail here. They were ordinarily composed of an assembly grouping together the States Members, and of a bureau for permanent administration. Sorne of these commissions and unions, due to the technical field of their action, were provided with considerable legal powers of action, limiting not

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INTERNATIONAL ORGANIZATIONS OR INSTITUTIONS, HISTORY OF 7

insignificantly the sovereignty of their Member States.

1hus, for example, the Rhine Commission was vested with considerable powers of standard setting and also with judicial functions. Ir functioned as a court of appeal from the local courts in each ri parian State, with rhe objective of irhplementing the Rhine Convention and the numerous rules adopted for a proper administration of thar river. Each riparian State had one vote within the Commission; but in certain administrative matters voting rights were weighed according to the length of the river bank of the Member States. The European Commission of the Danube had been vested with similar administrative and legislative powers.

It enjoyed a right to adopt rules (Règlements) directly applicable in the Member States. It possessed its own executive organs in order to implemenr its decisions, rhus not being dependent upon the executive organs of the Member States. Moreciver, it could directly levy rolls and taxes from river traflic and impose pecuniary.

penalties against individuals. It frequently resorred to majority vote. Its agents enjoyèd diplomatie immunities. As can be seen, these partii:ularly extensive powers rn ove the European Commission of the Danube into a forerunner of supranational communities.

18 The administrative unions had generally less serin- gent powers at their disposai than the fluvial commissions. Their instirutional structure was· èssentially bipartite, with an assembly of the (State) delegates, wh ose function was essentially thar of standard setting, and a small secretariat (Bureaux), ensuring the P,erma- nence of the origination and having the main funttions of preparing meetings, gathering information, and implememing the decisions.

E. The Century oflnternational Organizations (20th Century)

19 Technical cooperation could not completely over- shadow the lack of, and the need for, political cooperation. Qui te the contrary: to the extent the technical interdependencies rose, the lack of poli rica! institutions became increasingly evident, unacceptable, and para- lysing. The stakes of sorne form of universal polirical unity were so high, however, that they could not be met by simple evolution, in a score aloof from any drama;

only a catastrophic event could stir the consciousness of that necessity and allow such a great leap to be taken notwithstanding al! great obstacles. Th us, World War I

was the mother of the first universal organization of the world, the League of Nations of 1919. The nature of war had complerely changed in the previous 100 years.

From a usually limited armed contest between profes- sional armies, it had become a scourge and cataclysm, leaving behind ir only devastation and impoverishment, forwinners and vanquished alike. The reasons for these changes towards increasingly brutal wars were manifold: first, technological advance in weaponry; second, rise of nationalism, with popular armies of increasing sizes, poorly trained soldiers, and indoctrinarion of the fighters; third, increasing interdependence among nations, where the war imposed as a side-effect heavy tolls on neutra! countries, almost as muchas on bellig- erents; fourth, indusrrialization, with the concomitant war necessity of each belligerent to target ali industrial production useful for the adverse war effort, this in turn implying attacks on civilian objects and persons. World War I had glaringly brought to fore ail these developments. The rime was now ripe for the attempt to create and to run an international organization of universal outlook in order to try to sertie disputes peacefully, to provide a forum for cooperation and legislation, and to maintain the peace. War had had its rime; urider modern conditions, the organization of peace became paramount. Therefore, the old peace projects of the various philanthropists and thinkers here found sorne degree of lare vindication (see also -> Peace, Proposais for the Preservation of). In 1946, the League ofNations then passed its testimony to the UN. The UN took up the flame of previous experience attempting to bring it to a higher degree of perfection. In particular, through the UN specialized agericies, the contemporary world organization tried to further international justice and maintenance of peace in a wider array of spectra than just collective security and -> peacejùl settlement of international disputes. It tried to address the root causes of international discord in the varions economie and social areas ofhuman !ife.

20 Overall, in the 20th century, the mode! of modern IOs was sertled. These bodies are now modelled on an assembly, where ali State members are represented; on a council, ie a restricred executive organ, where sorne States have a sear, be iton the basis of importance (permanent members) and/or by rotation (the others); on a secretariat, representing the permanent administration of the body; and sometimes on a judicial branch, for staff member disputes, or, as in the UN main body, the

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ICJ as principal legal organ of the Organization, and indeed as principal legal court for inter-State disputes in the world. Modern IOs are based on the sovereignty of the Member States (see egArt 2 (1) UN Charter).They have thus normally (apart from regional organizations, su ch as the European Union) no direct legislative power, nor any supranational standing. Their number spread considerably in the course of the 20th cemury, from 37 before World War I (1909) to more than 350 today.

21 This rise of IOs has had profound effects on the complexion of public imerhationallaw. First, the old doctrine that only States weie-> subjects ofinternational law (ie possessed legal personality, meaning legal rights and duties) has been progressively given up in the wake of the creation of such subjects as IOs. These organizations indeed possessed attributions under international law (treaty-making power, diplomatie immunities, responsibility forwrongful acts, etc). The 1949-+ Rep- aration for Injuries Suffered in the Service of the United Nations (Advisory Opinion) of the ICJ is emblematic in this regard. Second, while classical international law had been predicared upon mere passive coexistence among States, and also upon sorne predatoty pattern (ius ad bellum and recognition of-> annexation), the progressive creation of I Os as po les of collaboration among States in the pursuit of common interests has ushered in an 'international law of cooperation'(--> Co- operation, International Law of). This new branch of the law thus added itself to the old law of coexistence and largely evicted thar of'predation' (see WFriedmann The Changing Structure of International Law [Stevens London 1964] 60 et seq). Third, it has been noticed that IOs, with their numerous legal dealings, did not remain segregated into a narrow category of 'particular international law', ie in a law of particular treaty regimes, staying aloof from the common law (general international law) of the inà:rnational community. On the contrary, the UN Charter, but also many other legal relationships ofiOs, became engrafred in general inter- nationallaw, which thus wàS considerably enriched as toits content (see M Virally 'Panorama du droit international contemporain' [1983]183 RdC 9-382 at 247 er seq). The law of IOs and general international law thus becamè tightly interwoven. Fourth, these organizations ofren lem support to international law, on the one hand in their law making (eg the ILC of the UN), but on the other also in the sanction of the law, secured or ar !east improved trough their institutional arms.

F. Conclusions

22 There is today a certain disaffection of the gen- eral public, and also of sorne States, towards the phenomenon ofiOs. Iris due, among other factors, to a perception of Jack of efficacy-and perhaps thereby perceived Jack of necessity--of these bodies. Insuffi- cient account is taken here of the true financial and other material means of the organizations, which are ofren derisory, and of the fact that these bodies are normally not entrusted with any decisional power, the States Members remaining the sole decision- privileged sovereigns. In one word, there is ofren a pattern of unrealistic expectations towards these organizations, which then easily shifts into cynicism.

Another great problem in the same context is the Jack of proper information of the general public, who are at best ignorant of the real conditions, or atworst mis- led by myths. In the developing world there is also sorne creeping disappointment, since the organizations have not proven to be the hoped-for means of obtaining a greater share or influence in real international affairs through the hailed voting strength in organizational assemblies. To be sure, this somewhat turbulent state of affairs is but passing, as all other social feelings in human history. The gist of the matter lies elsewhere: it is the inescapable necessity of IOs as forums for international meeting and cooperation in our complex post-industrial world scattered in 194 States. Ail IOs are but a provisional and shifting attempt to approximate an optimal leve! of distribu- tion of powers between the concerns of the international community on the one hand and the concerns of the particular sovereigns on the other. Both must be properly accommodated and adjusted, since an individual entity without a cushion commonweal on which to rest cannot prosper, and a society without an appropriate health of its constituent entities is but plagued by disease. As has been lucidly said for the League of Nations:

[The League of Nations] was the fust effective move rowards the organization of a world-wide political and social order, in which the common interests of humanity could be seen and served across the bar- tiers of national tradition, racial difference, or geo- graphical separation ... It was always, in success and failure alike, the embodiment in constirutional form of mankind's aspirations towards peace and rowards

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INTERNATIONAL ORGANIZATIONS OR INSTITUTIONS, HISTORY OF 9 a rarionally organized world (FP Walters A History

of the League of Natiom

[Oxfo~d

University Press Oxford 1960]1 and 3).

1hese profound wotds remain ànalogously true for anyiO.

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.xzxe

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International Organizations or Institutions, lmmunities

before National Courts

CH:ANAKA WICKREMASINGHE 1his article was fast updated july 2009

A. Introduction

B. Modalities of Application oflmrnunities by

National Courts 7

C. Scope oflmrnunities 9

1. Waiver 9

2. Organizations Granted Limiœd lmrnunities

under RelevantTreaty Provisions 13 3. Applicability of the Restrictive Doctrine of

State Immunity? 14

4. Functional Necessity as Basis for Limiting

Immunities? 22

5. Limiting Immunities by Reference to

Human Righrs Standards 24

D. Imrnunities ofrilterriational Organizations in the

Absence of a Treaty Provision 28

1. Cases in Wbich the Forum State is a Member

of the Organization in Question 29 2. Cases in Wbich the Forum State is not a Member

of the Organization in Question 31

E. Assessment 34

A. Introduction

1 The immunities of international organizations are essentially granted to enshre thar. an international organization can fulfil its functions as an actor on the

international plane (--> International Organizations or Institutions, Privileges and Immunities). By contrast with the law on --> State immunity, the law relating to the immunities of international organizations has developed primarily in treaty practice rather than iri customary international law. The relevant treaties are therefore negotiared to ensure that each organization is granted an appropriate leve! of immunity to enable it to fulfil its functions while retaining its international·

character. Whilst the extent of the immunities enjoyed by different organizations therefore ofren differ according to the nature of the functions of each particular organization, the national court wh en seized of an issue relating to immunities will usually have a written treaty text to guide it. It will be on! y in relatively rare cases that a national court will be called upon to apply immunity in the absence of a treary provision.

2 Thus, international organizations with broad political functions such as the --> United Nations (UN) and, at a regional leve!, the--> Council of Europe (COE), the --> Organization of American States (OAS), and the -->

Afocan Union (,4U) enjoywide immunities from 'every form oflegal process' (see Art. II (1) General Conven- tion on the Privileges and Immunities of the Organiza- tion of African Unity [signed and entered into force 25 October 1965)1000 UNTS 393). Similarly the international headquarters agreements of military organizations such as the --> North Atlantic Treaty Organization (NATO) and the--> Western European Union (WEU) also provide for similarly wide immunity from jurisdiction. Likewise, international courtS which, by the nature of their work require independence. from ali forms of national control, also enjoy unlimited juris- dictional immunity. Whereas other organizations whose primary functions involve them in transactions with private parties, for example the World Bank (-->

International Bank for Reconstruction and Development [IBRD]) and the regional development ban,ks, enjoy more limited immunities particularly as regards their commercial activities. SimUarly technical-sometimes referred to as 'functional'---organizations, such as the --> European Space Agenry (ESA) or the European Molecular Biology Laboratory, often enjoy more limited forms ofimmunity.

3 In this respect the European Union ('EU') is of par- ticular interest, since it does not enjoy immunity from jurisdiction per se, though its property and assets do enjoy immunity from execution unless it is waived by

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INTERNATIONAL ORGANIZATIONS OR INSTITUTIONS, IMMUNITIES 11

the European Court of]ustice (->European Communi- ties, Court of justice [EC]} and Court of First Instance [CFI]). Nevertheless the fact that much of the work of the EU is governed by its own highly developed legal order and judicial system means that it is rare for the EU ro be subject to national jurisdiction.

4 This leads to another general observation: the immu- nities ofinternational organizations required under relevant treary provisions usually operate as a simple bar to the jurisdiction of the national courts, which may in other respects be competent to hear the complaint.

However, it should also be borne in mind that international organizations are established and governed by international law, and enjoy international legal personaliry which enables them to carry out transactions on the international plane (-> Subjects of International Law). When disputes arise relating to the activities of the organization on the international plane, including disputes relating to their internai structures and gov- ernance, national courts will, in principle, not have the competence to settle them, since such disputes are likely to raise matt ers of international law that are not justiciable at the national leve! (see also ->Act of State Doctrine). The issue of non-justiciabiliry may therefore arise independently of treary provisions on immuniry.

Conceptually, therefore, the operation of immunities should be distinguished from situations in which the Jack of competence of a national court is based on the non-justiciabiliry of the subject"matter of the dispute, albeit thar in practice both issues may arise in the same case.

5 Whilst at the international leve! the functional standard ofimmuniry is flexible-in that it permits the grant ofimmunities of differing extent to different organizations according to their functional requirements--the fact thar immunities are granted pursuant to treary provisions will generally ensure that each organization is treated in a uniform way in the courts of each of its Member States. Nevertheless the implementation of treary provisions on the immunities ofinternational organizations in national law will differ according the relationship berween a given national legal system and international law (->International Law and Domestic [Municipal} Law). In so-called 'monist' systems the treary text will itself become part of the national legal system following ratification by the forum State. In certain 'dualist' States it is also usual to reproduce the treary texr itself in the national implementing legislation, see

for example the practice in a number of Scandinavian jurisdictions.

6 On the other hand in a number of common law systems the approach has been to pass a general stat- ),lte empowering the executive to designate, by way of

·delegated legislation, a leve! ofimmunities appropriate to each organization. In such cases the express words of the treary obligations are often re-formulated into a form more familiar to the relevant national legal system, albeit that the treary itself may be referred to by courts and others when interpreting the national legislation. The International Organisations Act in the United Kingdom ('UK'; International Organisations Act of 1968 [UK) 6 and 7 Eliz 2 chapter 48) and the International Organizations Immunities Act in the United States ([clone 29 December 1945] 22 USC 288) are both examples of this approach.

B. Modalities of Application 'of lmmunities by National Courts 7 When faced with the immuniry of an international organization, in most cases the primary tasks of a national coutt will.concern 'the application and/

or interpretation of the relevant treary provisions. In principle the national court should apply .and interpret treary provisions in accordance with the rules of the international law on treaties .. Where the treary provision or national implementing legislation requires immuniry to be granted, th en the national court should in principle give it effect, by stopping the proceedings in limine litis (Cumaraswamy Case [1999] ICJ Rep 62, 87). Where the relevant treary provision requires that absolute immuniry begranted to an international organization, the task of the national court should be relatively straightforward. However if the text contains any form oflimitation on -> immunities, more difficult questions of interpretation of the text and perhaps characterization of the dispute may arise, requiring a deeper inquiry into the factual circumstances of the case, albeit still at a·preliminary phase:

8. The national court should take judicial notice of immunities proprio motu whether or not the international organization in question appears to plead it.

Where an international organization files a response to suit, or makes an appearance. solely for the pur- poses of asserting its immuniry, it will not be deemed to have submitted to the jurisdiction. Alternatively

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A Kiss, ~buse ofProcess', in R Wolfrum (ed), The Mi1X Planck Encyclopedia of Public International Law (Oxford University Press Oxford 2012).

International organizations or institutions, History of

Dictionary / Encyclopedia Article

Reference